Do Anti-Discrimination Statutes Apply to Private Adoption Agencies?

by Joseph Erbentraut
EDGE Media Network Contributor
Thursday Apr 21, 2011

The Virginia Board of Social Services voted 7-2 on Wednesday, April 20, to scrap a proposal that would have banned discrimination based on sexual orientation in licensing decisions made by the state's adoption and foster care agencies.

Virginia law currently bars same-sex couples from adopting children in the state, and this ruling ensures that will remain the case.

James Parrish, executive director of Equality Virginia, criticized the decision-which effectively limited the classes of discrimination to only race, national origin and ethnicity-as "not in the interest of all the children currently sitting in the foster care system." He vowed to revisit the issue in the near future.

"It was very clear that [their] interest was not the top priority or interest of those who spoke against this proposal," said Parrish. "The state of Virginia is allowing state-licensed child-placing agencies to discriminate against people and limit the applicant pool."

Then-Gov. Tim Kaine had pushed for the proposal before leaving office last year. Current Gov. Robert McDonnell and Attorney General Ken Cuccinelli vehemently opposed the measure. McDonnell has repeatedly said he believes faith-based agencies should make their own policy on the subject, while Cuccinelli's office issued a memo advising the board that it lacks the legal authority to approve the proposal.

Catholic Charities Leaves Adoption Business

As several states move ever closer towards more concrete relationship recognition-offering domestic partnerships or civil unions, if not full marriage equality-of same-sex unions, new questions concerning the rights of gay and lesbian couples to adopt children or become foster parents have arisen.

The issue has proven sticky when it comes to faith-based agencies that receive state funding but operate in a somewhat gray legal area-particularly in states with laws that ban discrimination based on sexual orientation or gender identity in public accommodations. Such statutes have prompted Catholic Charities and other agencies to end adoptions in New York, Massachusetts and California.

Arizona Gov. Jan Brewer earlier this week approved a measure that restricts gay adoption in the state. The bill, which state Sen. Linda Gray introduced, requires both state and private adoption agencies to give preference to married heterosexual couples in the placement process.

Jennifer Chrisler, executive director of the Family Equality Council, echoed Parrish's assertion that the agencies' and lawmakers' concerns over exemptions to LGBT-inclusive policies in the recent battles over gay adoption rights are "fail[ing] to understand that these decisions should only be made on the basis of what is in the best interest of the children."

More than an estimated 120,000 children across the country are currently awaiting adoption. Chrisler added they would benefit most from a stable, loving home-regardless of the sexual orientation of their adoptive parents.

"We know that kids do better if they are in stable home environments, so limiting the number of potential parents for them is not a good strategy," she told EDGE. "We know it is expensive for the states, so this is in the state's fiscal interest and we also know, from more than 30 years of social science research, that these kids do equally well in same-sex couple-headed households. These three things are very clear."

Attacks on Same-Sex Parenting Part of "Radical Agenda"

Chrisler further described the attacks on same-sex parenting through adoption and foster care as part of a "radical agenda" for which some socially conservative lawmakers have pushed. She said this comes at the expense of children who are currently in the system. "These far right voices in state legislatures are creating a lot of political momentum for things that are not good for families or children," she added. They are playing politics on the back of very vulnerable kids who need better homes."

Efforts to undermine same-sex couples' parenting rights, however, have faced some resistance.

Illinois lawmakers have thwarted several attempts to allow faith-based adoption and foster care agencies to opt-out of state non-discrimination laws that apply to same-sex couples. Members of a state Senate committee on Monday, April 13, narrowly defeated a measure that would have allowed agencies to turn away prospective adoptive or foster parents who challenge their "deeply held religious beliefs."

Ed Yonka, director of communications and policy for American Civil Liberties Union-Illinois, applauded the committee for rejecting the proposal. He described the failed bill as a sign of what he perceives as a changing tide in the general public's perception of gay parenting issues. The Illinois Department of Children and Family Services who will soon decide on whether faith-based adoption and foster care agencies can legally deny same-sex couples.

"We have reached a moment where, frankly, a majority of American people aren't buying the argument against gay parenting or relationship recognition," Yonka told EDGE. "It's not surprising that in a state like Illinois we occasionally see this sort of effort to turn back the clock but I think the larger issue is that these efforts keep getting defeated here. These efforts are beginning to sound like the last gasps of a movement trying to deny fundamental rights and freedoms and I don't think they carry the kind of weight, seriousness or emotion they once did."

Adoption Debate to Go to Capitol Hill

As the debate over same-sex adoption continues in state legislatures across the country, activists plan to bring the issue to Capitol Hill. Congressman Pete Stark (D-Calif.) is expected to introduce a bill-the Every Child Deserves a Family Act-on May 3 that would provide incentives to states with LGBT-inclusive non-discrimination policies that apply to adoption.

The American Academy of Pediatrics, the Child Welfare League of America, the American Psychological Association and the vast majority of other mainstream professional organizations that work on these issues have endorsed gay adoption rights. The Department of Health and Human Services also reiterated their support for same-sex adoptions in a memo released on Thursday, April 21.

"LGBT foster and adoptive parents can provide a loving, stable home, responsive to the needs of LGBTQ youth in care, and are a largely untapped resource-an estimated 2 million LGB individuals are interested in adopting," wrote Bryan Samuels, commissioner of HHS' Administration for Children and Families.

Joseph covers news, arts and entertainment and lives in Chicago. He is the assistant Chicago editor for The Huffington Post. Log on to to read more of his work.


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